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1. Introduction and Overview:  

The Ambit of International Law

Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This book is a text about international law, not a text of international law. It tries to explain what international law does and how the international legal system operates, but not to set out a comprehensive or systematic account of what the rules of international law are. This introductory chapter provides a brief outline of the scope and nature of international law. It discusses the changing scope of international law; the emergence of international organizations; the emergence of new international actors; why people should comply with international law; and how international law is invoked and applied.

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This chapter begins by defining international economic law. It then discusses the main international economic institutions: the World Trade Organization, the International Monetary Fund and the World Bank. It goes on to elaborate on the key principles of international trade law: tariffication, binding tariffs, most favoured nation treatment and the national treatment obligation and discusses exceptions to these principles, anti-dumping and subsidies, regional trade arrangements, and developing States and dispute settlement within the WTO. The chapter also discusses the key principles of international investment law (including foreign direct investment, protection standards, expropriation and dispute settlement); the international financial architecture; and international economic law and State sovereignty.

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Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting

This chapter discusses the relation between international law and criminal jurisdiction by states and examines the main heads of jurisdiction applied by states. It then analyzes the content of the relevant international rules dealing with domestic criminal jurisdiction for the repression of international crimes.

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Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter presents some brief, final thoughts concerning the declining influence of the individual nation-State. It suggests that the power of the State is in decline when measured against the increasing power of other actors, such as international and supranational organizations. The result, however, is not so much an expansion in the scope of international law so as to claim all these other actors as its own, but rather that the boundaries between international law and neighbouring legal subjects are breaking down. The most important point is that all of the ground occupied by international law is shared with others who are not lawyers but men and women in the vast range of other professions and businesses whose cumulative efforts shape the world. While lawyers have a contribution to make going about resolving some of the most crucial problems that face the world, it is only one way among many.

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Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting

Terrorism, as in the case of torture and aggression, is often treated as outside the ‘core crimes’ bracket of deserving international criminal adjudication. Many states believe that terrorism is better investigated and prosecuted at the state level by individual or joint enforcement and judicial action. This view is strengthened by the feeling that the concept of terrorism is still controversial at the international level because it is widely held that there is no agreement yet on what some states deem to be a necessary exception to the crime. This chapter examines the reasons why the traditional wisdom is that a generally agreed definition on terrorism as an international crime is lacking. It argues instead that many factors point to the existence of such agreed definition, at least for terrorism in time of peace. The legal ingredients of terrorism as an international crime are therefore analyzed.

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This chapter illustrates the concept of responsibility in international law. Within international law, the term ‘responsibility’ has long been understood to denote how fault or blame is attributable to a legal actor for the breach of an international legal obligation. State responsibility remains the archetypal and thus most developed form of international responsibility. Nevertheless, other international actors apart from States may also bear rights and obligations under international law. The result of such capacity is the potential to bear responsibility for a breach of an international legal obligation. International law also provides for what are termed ‘circumstances precluding wrongfulness’, through which an act which would normally be internationally wrongful is not deemed as such. In such situations, international responsibility is not engaged. These are akin to defences or excuses in municipal legal orders.

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Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting

This chapter begins with a discussion of the notion of war crimes. It then covers the criminalization of the serious violation of a rule of international humanitarian law; the objective and subjective elements of war crimes; the nexus with armed conflict; and war crimes in the International Criminal Court Statute.

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International law is a description of an entire legal system: the international legal system. It is an international legal system by which legal rules are created in order to structure and organise societies and relationships. It acknowledges the influence of political, economic, social and cultural processes upon the development of legal rules. This chapter discusses the relevance of international law; the international community and international law; theories of international law; and the practice of international law.

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Stuart Bell, Donald McGillivray, Ole W. Pedersen, Emma Lees, and Elen Stokes

This chapter describes the development, scope, and application of international environmental law, which has expanded significantly since the late 1960s. The focus is on international treaties relating to environmental protection. The chapter is restricted to discussing public, rather than private, international law—that is, the law between states, rather than the conflict of legal systems. International law has often been regarded as something rather closer to international relations due to the fact that there is no single body with the power to make and enforce law against states, companies, or individuals effectively. In the UK, international law does not necessarily have a direct impact on domestic law or on individuals. Treaties need to be given effect to through national legislation and are concerned with the action of states, not individuals within states—with some notable exceptions, such as the law on war crimes.

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Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting

International criminal law (ICL) is a body of international rules designed both to proscribe certain categories of conduct (war crimes, crimes against humanity, genocide, torture, aggression, international terrorism) and to make those persons who engage in such conduct criminally liable. These rules consequently either authorize states, or impose upon them the obligation to prosecute and punish such criminal conducts. This chapter discusses the main features of ICL; the sources of ICL; and the notion of international crimes.

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This chapter provides a brief introduction to the two main sources of public international law, treaty law and customary international law. It provides a basic overview of the law of treaties and explains the special status of obligations arising under the United Nations Charter. It outlines the key features of customary international law; examines the relationship between treaty law and customary international law; and revisits the idea of whether there is a hierarchy of sources in international law, and how conflicts between international law norms are to be resolved. The chapter also discusses the relationship between international criminal law and other branches of international law, specifically human rights law and international humanitarian law.

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This chapter discusses the development and current state of international investment law, which encompasses international finance law, international trade law, international investment law, and regional economic trade agreements. Recent progressions in the area of international financial law, international trade law, and investment law demonstrate that other areas of international regulation have a decisive influence on international investment law. Moreover, international investment law is more increasingly focused on development concerns. International investment law is currently going through an exciting phase in its development. It has now become one of the fastest changing areas of international law with exciting and far-reaching implications for both investment-receiving and investment-exporting countries, thanks to enterprising claimants and innovative interpretations and expansive approaches adopted by international investment tribunals. This chapter seeks to capture the law and the recent trends in both State practice and jurisprudence in this area of international law.

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Municipal public law (by which is meant the public law of national or sub-national polities, including but not limited to local government) is always influenced by events taking place elsewhere in the world and the activities and norms of other polities. For example, the existence of a state depends at least partly on its recognition by other states, and political theories and legal ideas have always flowed across and between regions of the world even if they provoked opposition rather than adoption or adaptation. Yet despite, or perhaps because of, this, any state has good reasons for controlling the introduction of foreign legal and constitutional norms to its own legal order. It is important to check that the norms are compatible with one’s own national values and interests before allowing them to operate within one’s own system. A state which values a commitment to the rule of law, human rights, or democratic accountability is entitled to place national controls over potentially disruptive foreign influences. This chapter considers the nature and legitimacy of those national controls, particularly as they apply in the UK, in the light of general public law standards, bearing in mind that influences operate in both directions, not only between states but also between municipal legal standards and public international law.

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From a law-making perspective the term ’soft lawʼ is in most cases simply a convenient description for a variety of non-legally binding instruments used in contemporary international relations by States and international organizations. Soft law in this sense can be contrasted with hard law, which is always binding. Non-binding soft law instruments are not law per se, but may be evidence of existing law, or formative of the opinio juris or State practice that generates new customary law. They may additionally acquire binding legal character as elements of a treaty-based regulatory regime, or constitute a subsequent agreement between the parties regarding interpretation of a treaty or application of its provisions. Other non-binding soft-law instruments are significant mainly because they are the first step in a process eventually leading to conclusion of a multilateral treaty, or because they provide the detailed rules and technical standards required for the implementation of a treaty. An alternative view of soft law focuses on the contrast between ’rulesʼ, involving clear and reasonably specific commitments which are in this sense hard law, and ’normsʼ or ’principlesʼ, which, being more open-textured or general in their content and wording, can thus be seen as soft even when contained in a binding treaty. It is a fallacy to dismiss soft law because it does not readily fit a theory of what is ‘law’: properly understood, it can and does contribute to the corpus of international law-making.

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This introductory chapter provides an overview of the history and nature of international law. Rather than regulating the behaviour of individuals in their relations with one another, international law is usually portrayed as a legal framework to govern the relations between ‘States’, the organized political entities which are the primary subjects of international law. ‘Public international law’ is to be distinguished from ‘private international law’, which describes the principles that determine the applicability of a certain law or set of laws to situations involving individuals with a foreign or transboundary element. Indeed, private international law regulates the conflicts between rules of different domestic legal orders, while public international law concerns relations between States. Today, public international law has exceeded its foundations as the law of inter-State relations and operates as an integral part of the daily lives of individuals.

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Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. This chapter discusses the effect of EU and international law. The UK is a signatory to multiple international institutions. Each of these institutions sets a framework for the UK to operate within, granting certain rights, benefits, and obligations. The most prominent institutions are the EU, the European Convention on Human Rights and Fundamental Freedoms (ECHR), and the United Nations. Although the UK’s continued involvement in these institutions will have a direct impact on the operation of UK law, relations with other states, whether they be good or bad, will also shape the face of the English legal system. The chapter then studies international law, considering basic matters such as the meaning of international law, the doctrine of state sovereignty, and the distinction between public and private international law.

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Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting

The term ‘genocide’ refers to the intention to destroy entire groups, whether national, racial, religious, cultural, and so on. Genocide acquired autonomous significance as a specific crime in 1948, when the UN General Assembly adopted the Genocide Convention, whose substantive rules may largely be considered as declaratory of customary international law. This chapter analyzes the main features of the Genocide Convention and examines the legal ingredients of the crime of genocide, as also clarified in international and national case law. It discusses developments in the case law on genocide; objective and subjective elements of genocide; protected groups; two problematic aspects of genocide; genocide and crimes against humanity; and Article 6 of the International Criminal Court Statute and customary international law.

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Paola Gaeta, Jorge E. Viñuales, and Salvatore Zappalà

This chapter surveys the process of emergence of human rights law in the post-1945 era, focusing on the major milestones, the 1948 Universal Declaration of Human Rights, the two 1966 International Covenants, and the establishment of several regional mechanisms in Europe, the Americas, and Africa. It emphasizes the tension between traditional international law and the development of human rights as a ground-breaking doctrine after the Second World War. In essence the human rights doctrines force States to give account of how they treat all individuals, including their nationals; this make States accountable for how they administer justice, run prisons, and so on. Potentially, it can subvert their domestic orders and requires them to adhere to minimum standards agreed at international level. As a further consequence, human rights doctrines have altered the traditional configuration of the international community as driven only by the interests of States.

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This chapter on subjects of international law discusses established legal persons and special types of personality. Established legal persons cover states, entities legally proximate to states, entities recognized as belligerents, international administration of territories prior to independence, international organizations, and individuals. Special types of personality cover public and private corporations, non-self-governing peoples, and entities sui generis.

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While not the focus of this textbook, understanding the role and nature of international environmental law is important in understanding UK environmental law. This is because, international law has played a vital role in creating frameworks for environmental protection and for catalysing developments in national environmental law. This chapter provides an overview of international environmental law. It begins with a brief examination of the concept of international environmental law, the different ways it can be defined, its history, and the emergence of hybrids of it. In the second section a number of key ideas in public international law that are relevant to international environmental law are explored including the sources of international law, state sovreignity, fragmentation, and international law theory. The analysis then moves on to the institutional landscape of international environmental law, its legal nature and finally the nuanced relationship between international environmental law and national and EU law.